Key Takeaways
- Yes. In most cases a person in Australia on a tourist visa can make a valid Subclass 866 Protection Visa application, and the answer to the question "can tourists apply for protection visa 866" only changes where a specific legal bar applies.
- The most common real bar is section 48A of the Migration Act 1958. A person who has been refused a protection visa, or whose protection visa was cancelled, cannot make another protection visa application while in Australia unless the Minister personally lifts the bar under section 48B.
- Section 46A (unauthorised maritime arrivals) and section 91E (safe third countries) are also application bars, but a tourist who arrived by air on a visa is not an unauthorised maritime arrival, and no safe third countries are currently prescribed.
- Identity problems under sections 91W and 91WA, and the security and character criteria in sections 36(1B) and 36(1C), do not stop a tourist lodging. They can stop the visa being granted.
- Condition 8503, an expired tourist visa, an earlier refusal of a different visa, and having told the Department you were coming for a holiday are not bars to a protection visa application.
Can Tourists Apply for Protection Visa 866? The Short Answer
Yes. Can tourists apply for protection visa 866? In most cases they can. A person who is in Australia on a tourist or visitor visa can make a valid application for a Subclass 866 Protection Visa, and the Migration Act 1958 does not require that person to have arrived intending to seek protection.
The question "can tourists apply for protection visa 866" is really a question about bars. The law allows a visitor to apply unless a specific provision of the Act stops that particular person. Those provisions are few, and they are precise. Most visitors are not caught by any of them, and for those visitors the answer to "can tourists apply for protection visa 866" is simply yes.
This article is written for a visitor who wants to know one thing before doing anything else: is there something in my immigration history that blocks me? It explains the bars that are real, the bars that people wrongly believe exist, and what to do if a bar does apply.
My Migration Lawyers has already published a general guide on applying for a Subclass 866 Protection Visa on a tourist visa. This article goes one step further. It deals with the legal barriers that can stop a tourist applying, and with the false barriers that stop many people from applying when they are entitled to.
What is an application bar, and why does it matter to a tourist?
An application bar is a provision of the Migration Act that makes a visa application invalid, so the Department cannot consider it at all.
This is different from a refusal. A refused application has been assessed and has failed. An invalid application has never been assessed. The Department's Protection Visa Processing Guidelines state plainly that a protection visa application made by a person affected by an application bar is not a valid application.
The main bars for protection visas are in sections 46A, 46B, 48A, 91E and 91K of the Act. The application form lists the circumstances in which they apply, as our guide to Form 866 explains. Each has a matching power that allows the Minister to lift the bar if the Minister thinks it is in the public interest. The Department's guidelines also state that the Minister has no duty to consider whether to use any of those powers.
This matters for anyone asking "can tourists apply for protection visa 866" because an invalid application does not give the protection that a valid one gives. It does not produce a bridging visa in the ordinary way. It does not lead to an assessment of the claims. And it can leave the person believing they are safe when they are not.
Bars on applying and barriers to grant
There are two kinds of problem, and they work differently.
An application bar stops the application being made. The only real application bars a visitor is likely to meet are section 48A and, rarely, the others described below.
A barrier to grant does not stop the application being lodged or assessed. It stops the visa being granted at the end. Identity problems under sections 91W and 91WA, and the security and character criteria in sections 36(1B) and 36(1C), are barriers to grant.
The difference is important. A person facing an application bar needs a Ministerial decision before a valid application can be made. A person facing a barrier to grant can lodge, but must deal with the issue properly inside the application.
Can Tourists Apply for Protection Visa 866 After a Previous Refusal?
No, not if the previous refusal was of a protection visa and the person has remained in Australia since. Section 48A(1) of the Migration Act provides that a person who has applied for and been refused a protection visa of any class cannot make a further valid protection visa application while in the migration zone, unless the Minister lifts the bar under section 48B.
For a visitor who has been refused before, the honest answer to "can tourists apply for protection visa 866" is usually no while they remain in Australia. This is the bar that catches visitors most often. It applies even if the person now holds a new substantive visa, including a new tourist visa. It applies to a refusal of any class of protection visa. And it applies no matter how long ago the refusal was, provided the person has not left Australia since.
Cancellation of a protection visa
Section 48A(1B) applies the same bar to a person whose protection visa was cancelled while they were in the migration zone. The person cannot make a further protection visa application while in Australia unless the Minister lifts the bar.
New claims on different grounds
Since 28 May 2014, section 48A applies on any grounds. Before that date, a Federal Court decision allowed a further application based on a different criterion, for example complementary protection after a refused refugee claim. Parliament reversed that position. A second application on new or different grounds is now barred in the same way as a second application on the same grounds. Our ART guide to Subclass 866 refusals explains how this applies after the Tribunal affirms a refusal.
This point is widely misunderstood. Many people believe that a new claim, or a new event in the home country, entitles them to lodge again. It does not. The new claim must go to the Minister through section 48B.
Leaving Australia and returning
A person who has been refused a protection visa, or whose protection visa was cancelled, and who then leaves Australia and later returns, is generally no longer barred by section 48A. The exception is section 48A(1A), which covers limited situations such as a person returned to Australia despite being removed under section 198.
So the answer to "can tourists apply for protection visa 866 after a previous refusal" depends on the person's travel history. A visitor who was refused a protection visa years ago, went home, and has now returned on a new tourist visa is generally not caught by section 48A. A visitor who was refused and never left is caught.
Refusal of a family member's application
Anyone who was included in an earlier protection visa application as a member of a family unit should treat their position as uncertain until it has been checked. The precise application history matters, and it should be confirmed against the Department's records before any new application is lodged.
What is a section 48B request, and when can it help?
A section 48B request asks the Minister to decide, personally, that it is in the public interest to allow a person barred by section 48A to make a further protection visa application.
The power is personal and non-compellable. The Minister does not have to consider a request. There is no application form that guarantees an assessment, and no merits review if the Minister declines to act. Requests are granted rarely.
The Department's policy explains the purpose of the power. When section 48A was tightened in 2014, the Department said that the section 48B power, together with its pre-removal assessment processes, is the safeguard that allows genuinely new protection claims to be assessed. Departmental guidance also states that, for a person who has been refused a protection visa, further protection-related claims or changes in circumstances are generally considered through the section 48B process.
Why a first section 48B request must be done properly
A request that is assessed as not meeting the Minister's guidelines has lasting consequences. Under the Department's bridging visa policy, a person who has had a previous section 48B request assessed as not meeting the guidelines is ineligible for a Bridging visa E on section 48B grounds for a further request. A weak first request can therefore affect both the chance of a further application and the person's lawful status while it is considered.
A properly prepared section 48B request identifies what is genuinely new, explains why it was not and could not have been raised before, and sets out the evidence. It is not a second attempt at the same case.
For anyone asking "can tourists apply for protection visa 866" after a refusal, section 48B is the only lawful route while they remain in Australia. It is a complex case and it needs a lawyer. Our protection visa lawyers advise on whether a request is viable before anything is lodged.
If the refusal is recent
If the protection visa refusal is recent, the first question is not section 48B. It is whether the refusal can still be reviewed at the Administrative Review Tribunal. The deadline to apply is short and strictly applied. Our guide to appealing a protection visa refusal to the ART explains the process.
Can Tourists Apply for Protection Visa 866 If They Arrived by Boat?
Not without the Minister's permission, if they arrived as an unauthorised maritime arrival. Section 46A(1) prevents an unauthorised maritime arrival who is in Australia and is an unlawful non-citizen, or holds a bridging visa or certain temporary visas, from making a valid application for any visa, including a protection visa, unless the Minister lifts the bar under section 46A(2).
For almost everyone searching "can tourists apply for protection visa 866", this bar does not apply. A person who arrived in Australia by air holding a tourist visa, and passed through immigration clearance, is not an unauthorised maritime arrival. How a person entered Australia is what matters, not what has happened to their visa since.
Section 46B applies a similar bar to transitory persons. These are people who were taken to a regional processing country after arriving as unauthorised maritime arrivals, and certain children of those people. A visitor who arrived on a tourist visa is not a transitory person.
Can Tourists Apply for Protection Visa 866 From a Safe Third Country?
Yes, at present. Section 91E of the Migration Act prevents a person covered by a safe third country agreement from making a valid protection visa application unless the Minister lifts the bar under section 91F. However, the Department's guidelines confirm that there are currently no prescribed safe third countries.
Section 91E also refers to people covered by the Comprehensive Plan of Action for Indo-Chinese refugees of 1989. That plan is no longer in effect.
People are sometimes told that because they passed through, or lived in, another country before coming to Australia, they cannot apply. That is not the effect of section 91E while no safe third countries are prescribed. The question of whether the person could obtain protection elsewhere is relevant to the assessment of the claims, not to whether the application is valid.
Other rare bars
A small number of other bars exist. Section 91K prevents a person who holds or has held a Temporary Safe Haven visa, and has not left Australia since, from applying for most visas unless the Minister lifts the bar. The Department's Form 866 also lists being a national of two or more countries as an application bar. Few visitors are affected by either, but both should be checked against the person's history. Our Subclass 866 Protection Visa page sets out the full criteria.
Can Tourists Apply for Protection Visa 866 Without a Passport or Identity Documents?
Yes. A missing or doubtful identity document does not make the application invalid. It is a barrier to grant, not an application bar, and the claims are still assessed.
Under section 91W, the Department may ask an applicant to produce evidence of identity, nationality or citizenship. If the applicant refuses or fails to comply, or produces a bogus document, without a reasonable explanation, the visa cannot be granted. Section 91WA has a similar effect where the applicant provides a bogus identity document with the application, or destroys identity documents after lodging, unless there is a reasonable explanation and the applicant either provides documentary evidence of identity or has taken reasonable steps to do so.
So a visitor asking "can tourists apply for protection visa 866 without a passport" can lodge, but must deal with identity inside the application. Most tourists arrived with a passport, because a passport was needed for the visitor visa. Problems arise where the passport has been lost, surrendered, taken by someone else, or is in a name the person says is not their own. Each of those situations can be explained. The explanation, and the steps taken to obtain documents, should be in the application from the start.
Our protection visa documents checklist explains what identity evidence is usually needed and what to do if you have none.
Can Tourists Apply for Protection Visa 866 With a Criminal Record or Security Concern?
Yes, the application can be lodged, but security and character are criteria for grant. Section 36(1A) requires every protection visa applicant to satisfy sections 36(1B) and 36(1C), as well as one of the protection criteria in section 36(2).
Section 36(1B): security assessment
Section 36(1B) requires that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. If an adverse security assessment has been issued and is current at the time of decision, the application must be refused. A qualified security assessment does not by itself cause the applicant to fail section 36(1B), although the information in it may be relevant to other criteria.
Section 36(1C): danger to security or the community
Section 36(1C) requires that the applicant is not a person whom the decision maker considers, on reasonable grounds, to be a danger to Australia's security, or, having been convicted by a final judgment of a particularly serious crime, to be a danger to the Australian community.
The second limb has four parts. The person must have committed a crime, been convicted by final judgment, the crime must be particularly serious, and the person must be a danger to the community. The Department's guidelines state that a conviction for a particularly serious crime does not in itself mean that the person is a danger to the community.
Exclusion and character referral
Separately, section 5H(2) excludes a person from the refugee definition where there are serious reasons for considering that they have committed certain serious crimes, and section 36(2C) contains matching provisions for complementary protection. If those provisions do not apply but character concerns remain, the application may be referred for consideration under section 501.
Security and character issues are the area where the question "can tourists apply for protection visa 866" is most often answered wrongly in both directions. A visitor with any criminal history, in Australia or overseas, should get advice before lodging. The answer to "can tourists apply for protection visa 866" is still yes, but the application must address the issue directly.
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Can Tourists Apply for Protection Visa 866 With Condition 8503?
Yes. Condition 8503 does not stop a tourist applying for a protection visa, and no waiver is needed.
Condition 8503 provides that the holder will not be entitled to be granted a substantive visa, other than a protection visa, while they remain in Australia. The protection visa exception is written into the condition itself. The Department's policy on visitor visa conditions confirms that condition 8503 does not prevent the holder from applying for a protection visa.
This is one of the most common false bars. Condition 8503 is mandatory on some Subclass 600 visitor visa streams, including the Sponsored Family stream, the Approved Destination Status stream and the Frequent Traveller stream, and on the Tourist stream where sponsorship has been approved. It is discretionary in the Business Visitor and Tourist streams. Many visitors see "No Further Stay" on their visa grant and assume every door is closed.
Condition 8503 keeps operating after the tourist visa ends while the person remains in Australia. It stops a partner, student or skilled visa being granted onshore without a waiver. It does not stop a protection visa. So when a visitor with condition 8503 asks "can tourists apply for protection visa 866", the answer is yes, without any waiver request.
Can Tourists Apply for Protection Visa 866 After the Visa Expires?
Yes. An expired tourist visa does not prevent a protection visa application. A person who has overstayed can still make a valid application, provided no application bar applies.
The difference is in the bridging visa. A person who lodges while the tourist visa is still in effect is also treated as applying for a Bridging visa A, and condition 8101 (no work) cannot be imposed on a Bridging visa A held by a protection visa applicant whose application is not finally determined. A person who lodges after the tourist visa has expired is an unlawful non-citizen at the time of application and receives a Bridging visa E instead. Condition 8101 must initially be imposed on that visa.
To obtain a further Bridging visa E without condition 8101, the applicant must show a compelling need to work and an acceptable reason for the delay in applying for the protection visa. Our guide to bridging visas in Australia compares the two, and our article on delaying a Subclass 866 Protection Visa application explains how delay is assessed.
Overstaying also leaves a person at risk of being located, detained and removed before any application is made. An overstay does not change the answer to "can tourists apply for protection visa 866". It is not a bar. It is a reason to act immediately.
Can Tourists Apply for Protection Visa 866 After a Different Visa Was Refused?
Yes. Section 48A applies only to protection visa refusals and cancellations. A refused tourist visa extension, student visa or partner visa does not engage section 48A.
Section 48 of the Act is a different provision. It limits the visas a person can apply for if they are in Australia without a substantive visa and have had a visa refused or cancelled since they last entered. Protection visas are among the limited classes that remain available under section 48. So a refused visa of another kind does not close the protection pathway.
The same is true of a refusal or cancellation on character grounds under section 501. Section 501E prevents a person in that position from applying for another visa while in Australia, but the section expressly excludes protection visas.
An earlier refusal is still relevant. The Department will read the earlier application and compare it with the protection claims. Any difference needs to be explained. But the earlier refusal does not answer the question "can tourists apply for protection visa 866" with a no.
Can Tourists Apply for Protection Visa 866 After Saying They Came for a Holiday?
Yes. Telling the Department that you were travelling for a holiday is not a bar to a protection visa application.
A visitor visa application usually describes a job, a home and family at home, and a plan to return. The Department then reads a protection claim that says the person cannot safely return. People in danger often conceal it in order to leave, because telling the truth would have prevented them from travelling. A person may also have had a genuine holiday plan and faced new danger only after arriving. In that case the risk on return is still assessed under the refugee criterion and under complementary protection.
The earlier statement is a credibility issue, not a validity issue. It must be explained in the applicant's own account, so the decision maker does not raise it first at interview. Our article on the protection visa statement of claims explains how the account is structured, and our guide to the protection visa interview explains how inconsistencies are tested.
How to check whether a bar applies before you lodge
The way to check is to confirm your complete immigration history against the Department's records, not against memory. Nobody can properly answer "can tourists apply for protection visa 866" for a particular person until that history has been confirmed.
A proper check covers every visa application made in Australia, including any application in which you were included as a family member; every refusal and cancellation, and whether it was of a protection visa; every departure from and return to Australia since any refusal; how you first entered Australia; any Temporary Safe Haven visa; your nationalities; your identity documents; and any criminal history in any country.
If the check shows no bar, the next step is the claims themselves, tested against section 36 of the Act. Our guide to protection visa eligibility and the pillar guide to the Subclass 866 Protection Visa explain the criteria.
If the check shows a bar, lodging anyway does not help. An invalid application is not assessed. The right course is advice on section 48B, or on whether the bar really applies at all.
How My Migration Lawyers handles a case where a bar may apply
My Migration Lawyers acts in many protection matters for people in Australia on visitor visas, including complex cases where a previous refusal, a cancellation or an identity problem means the answer to "can tourists apply for protection visa 866" is not straightforward.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly deals with section 48A questions, section 48B requests, identity issues under sections 91W and 91WA, character and security questions, and applications lodged after a tourist visa has expired.
What the firm does first
Before anything is lodged, My Migration Lawyers checks the client's immigration history against the Department's records. The firm confirms whether any application bar applies and whether any barrier to grant needs to be addressed. If a bar applies, the firm advises on whether a section 48B request is viable and what it would need to show.
Preparing the application or request
The statement of claims is the client's own account. My Migration Lawyers helps the client set it out completely and in order, and presents the client's evidence in the form the law requires. The client reviews and corrects the statement, and the client decides which claims are advanced. Where the visitor visa application, an earlier refusal or an identity issue needs explaining, the explanation is part of the application from the start.
After lodgement
Once appointed, My Migration Lawyers is the Department's contact point. The firm responds to requests for information, prepares the client for the interview, and advises on protection visa refusals and review if the application is refused.
If you are a visitor and you are not sure whether a bar applies to you, get advice before you lodge. The question "can tourists apply for protection visa 866" has a clear answer once your history has been checked.
Book a consultation with My Migration Lawyers. If your matter is urgent, you can also call 1300 040 300.
Frequently Asked Questions
I was refused a protection visa years ago and went home. Can tourists apply for protection visa 866 again after coming back?
Generally yes. Section 48A bars a further protection visa application only while the person remains in the migration zone after the refusal. A person who was refused, left Australia, and later returned on a new tourist visa is generally no longer caught by section 48A. The exception is section 48A(1A), which covers limited situations such as a person returned to Australia despite being removed under section 198. The earlier application will still be on the Department's file, and the new claims will be compared with it. Your travel history and the earlier file should be checked before you lodge.
My tourist visa says No Further Stay. Do I need a waiver before applying for protection?
No. Condition 8503 provides that the holder is not entitled to be granted a substantive visa, other than a protection visa, while in Australia. The protection visa exception is part of the condition itself, and the Department's policy confirms that the condition does not prevent a protection visa application. A waiver is only relevant if you want to apply for a different visa, such as a partner or student visa, while you remain in Australia. You can lodge a protection visa application without any waiver request.
The Tribunal affirmed the refusal of my protection visa. Can I lodge a new application with new claims?
No, not while you remain in Australia. Section 48A prevents a further protection visa application after a refusal, on any grounds, unless the Minister personally decides under section 48B that it is in the public interest to allow one. New claims or changed circumstances are generally considered through the section 48B process. The power is non-compellable and rarely exercised. A request that is assessed as not meeting the Minister's guidelines can also affect eligibility for a further Bridging visa E on that basis, so the first request should be prepared carefully.
I have lost my passport. Will my protection visa application be invalid?
No. A missing passport does not make a protection visa application invalid, and the claims will still be assessed. Identity is a criterion for grant. Under section 91W the Department may ask for evidence of identity, nationality or citizenship, and failing to comply without a reasonable explanation prevents grant. What matters is a reasonable explanation for the missing document and evidence of the steps you have taken to obtain identity documents. That explanation should be included in the application from the start.
My visa expired months ago. Is it too late to apply for protection?
No. There is no deadline for making a protection visa application, and an expired tourist visa does not prevent a valid application. However, you will receive a Bridging visa E rather than a Bridging visa A, and condition 8101 (no work) must initially be imposed. To obtain work rights later, you must show a compelling need to work and an acceptable reason for the delay in applying. While you remain unlawful you are also at risk of being located and detained, so the application should be made as soon as possible.
Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.
